Application for Further Review of Protest No 2704-12-100148; Frozen Warmwater Shrimp from Thailand; Antidumping Order A-549-822

HQ H219635 August 5, 2014 PRO 2-05, ENT 1-01 OT:RR:CTF:ER H219635 RGR Port Director U.S. Customs and Border Protection 301 E. Ocean Blvd. Shoreline Beach, CA 90802 Attn: Mr. Gino Cerreta, Senior Import Specialist Re: Application for Further Review of Protest No: 2704-12-100148; Frozen Warmwater Shrimp from Thailand; Antidumping Order A-549-822 Dear Port Director, The purpose of this correspondence is to provide further review of Protest Number 2704-12-100148, which we received on May 30, 2012. The protesting party is Sea Wealth Frozen Food Co. Ltd. (“Sea Wealth”), part of the Rubicon Group (“Rubicon Group”). FACTS: Protest Number 2704-12-100148 concerns the liquidation and assessment of duties by U.S. Customs and Border Protection (“CBP”) of the following five entries of frozen warmwater shrimp from Thailand: xxx-xxxx9135, entered on February 15, 2008; xxx-xxxx5340, entered on June 16, 2008; xxx-xxxx5700, entered on September 15, 2008; xxx-xxxx5749, entered on September 22, 2008; and xxx-xxxx8834, entered on January 6, 2009. The merchandise at issue was produced, exported, and imported by Sea Wealth, and were subject to antidumping duty order number A-549-822, Certain Frozen Warmwater Shrimp from Thailand. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Thailand, 70 Fed. Reg. 5,145 (Feb. 1, 2005). On September 9, 2010, the U.S. Department of Commerce (“Commerce”) published the final results of an antidumping duty administrative review, covering all entries of certain frozen warmwater shrimp from Thailand entered between February 1, 2008 and January 31, 2009. See Certain Frozen Warmwater Shrimp from Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 75 Fed. Reg. 54,847 (Sep. 9, 2010). Subsequently, the final results were challenged at the Court of International Trade (“CIT”), and on October 18, 2010, the CIT issued a preliminary injunction enjoining the liquidation of the entries. On March 31, 2011, the CIT dismissed the litigation. On April 20, 2011, Commerce issued liquidation instructions covering frozen warm water shrimp from Thailand that was produced and/or exported by the Rubicon Group for the period between February 1, 2008 and January 15, 2009. See Commerce Message Number 1110316 (Apr. 20, 2011) (non-public). Message Number 1110316 provided importer specific liquidation instructions for merchandise produced and/or exported by the Rubicon Group and imported by certain companies, as well as exporter specific liquidation instructions for merchandise produced by the Rubicon Group and exported by certain companies. For companies that did not receive an importer specific rate or an exporter specific rate, however, the liquidation instructions, under Paragraph 5, directed CBP to apply the all-others rate to their shipments. Finally, the instructions covering shipments subject to the all-others rate also referenced Commerce’s clarification of its assessment regulation on May 6, 2003, Fed. Reg. 23,954 (May 6, 2003), or “reseller policy.” Sea Wealth is included as part of the “Rubicon Group.” However, the company did not receive an importer or exporter specific rate. Thus, CBP liquidated Sea Wealth’s entries on July 22, 2011 and July 29, 2011, and assessed antidumping duties at the “all-others” rate in accordance with Paragraph 5 of Commerce Message Number 1110316. On January 17, 2012, Sea Wealth filed a protest with the Port of Los Angeles (“Port”) protesting the liquidation of its entries. Sea Wealth argues that CBP improperly liquidated the five entries because those entries were not covered by Commerce’s liquidation instructions in Message Number 1110316, dated April 20, 2011. Specifically, Sea Wealth asserts that it is not covered under Paragraph 5 because it is not an intermediary or reseller under Commerce’s reseller policy. Thus, Sea Wealth’s position is that the five entries were incorrectly liquidated because they were not covered by Message Number 1110316. The Port argues that the entries were properly liquidated at the all-others rate set forth in Paragraph 5 of Commerce Message Number 1110316. Sea Wealth is identified on the entry documents and invoices as the manufacturer, shipper, and importer of record for all of the protested entries. Specifically, the Port asserts that because Sea Wealth did not receive an importer or exporter specific rate, the company falls under the all-others rate in Paragraph 5 of Commerce Message Number 1110316. After our office received Sea Wealth’s protest, we requested clarification from Commerce regarding the applicability of Paragraph 5 of Message Number 1110316 to Sea Wealth. Commerce responded to our inquiry, in an email dated May 19, 2014, and instructed that Paragraph 5 of Message Number 1110316 applies to shrimp entered by Sea Wealth, where Sea Wealth was the exporter, producer, and importer. ISSUE: Whether CBP properly liquidated the subject entries at the all-others rate LAW AND ANALYSIS: We note initially that the instant protest was timely filed, within 180 days from the liquidation of the entry. See 19 U.S.C. § 1514(c)(3). The subject entries were liquidated on July 22 and July 29, 2011, and Sea Wealth filed this Protest on January 17, 2012, within 180 days. Additionally, further review is warranted because the protest “involves[s] questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts.” 19 C.F.R. § 174.24(b). While both CBP and Commerce play a part in the enforcement of the antidumping laws, their roles are separate and distinct. It is well settled that when assessing and collecting antidumping duties, CBP merely follows Commerce’s instructions. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). The courts have consistently held that CBP’s role in the antidumping process is simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation. See Fujitsu Ten Corporation of America v. United States, 21 C.I.T. 104 (1997); American Hi-Fi International, Inc. v. United States, 19 C.I.T. 1340 (1995). In Mitsubishi, the Court held that “CBP has a merely ministerial role in liquidating antidumping duties.” 44 F.3d at 977. CBP simply applies the antidumping duty rate determined by Commerce and applies it to the entries as directed by Commerce’s instructions. Accordingly, CBP must follow Commerce’s instructions with regard to the entries of frozen warmwater shrimp from Thailand. Sea Wealth argues that CBP should not have liquidated the protested entries because as merchandise produced, exported and imported by Sea Wealth, the protested entries are not covered by Commerce’s April 20, 2011 liquidation instructions. Specifically, Sea Wealth argues that the protested entries were incorrectly liquidated at the all-others rate pursuant to Paragraph 5 of Commerce Message Number 1110316 because that paragraph only applies to resellers. Sea Wealth asserts that Paragraph 5 does not apply because it is not a reseller. As stated above, our office requested clarification from Commerce on this issue. Commerce responded to our inquiry in an email dated May 19, 2014, and instructed that Paragraph 5 of Message Number 1110316 applies to shrimp entered by Sea Wealth, where Sea Wealth was the exporter, producer, and importer. Thus, the entries should be liquidated under Paragraph 5 at the all-others rate. Consequently, in carrying out our ministerial role in assessing antidumping duties, CBP must follow Commerce’s instructions and clarification and liquidate Sea Wealth’s entries at the all-others rate pursuant to Paragraph 5 of Message Number 1110316. HOLDING: Sea Wealth’s protested entries were correctly liquidated at the “all-others rate” and protest number 2704-12-100148 should be DENIED. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division